United States v. Blasini-Lluberas, 1st Cir. (1998)

<head>
<title>USCA1 Opinion</title>
<style type="text/css" media="screen, projection, print">
<!-@import url(/css/dflt_styles.css);
-->
</style>
</head>
<body>

 
<pre> United States Court of Appeals 
For the First Circuit 
 No. 98-1392 
UNITED STATES OF AMERICA,
 
Appellee, 
 v.
 JOSE F. BLASINILLUBERAS, 
Defendant-Appellant. 
 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo
Cerezo, U.S. District Judge] 
Before 
 Boudin, Lynch, and Lipez 
Circuit Judges. 
 
 
 Roberto Boneta for appellant. Jorge E. Vega-Pacheco,
Assistant United States Attorney, with whom Guillermo Gil, United States
Attorney, and Nelson Prez- Sosa and Thomas F. Klumper, Assistant United
States Attorneys, were on brief for appellee. 
 January 25, 1999 
 
 
LIPEZ, Circuit Judge. On April 5, 1995, a federal grand jury returned a
multiple count indictment against defendant Jose Blasini-Lluberas ("Blasini"), a
former executive vice president of Ponce Federal Bank, and his co-defendant,
Ramiro Coln-Muoz ("Coln"), president of the bank. The indictment charged
both defendants with five counts of misapplication of bank funds under 18
U.S.C. 657, one count of bank fraud under 18 U.S.C. 1344, one count of
false entry under 18 U.S.C. 1006, one count of benefitting, directly or
indirectly, from the loan transactions in question under 18 U.S.C. 1006 and
one count of conspiracy under 18 U.S.C. 357. The jury returned guilty
verdicts against Blasini on all but one count, acquitting him on the charge of
 benefitting from the loan transactions. On appeal, Blasini challenges the
sufficiency of the evidence to support the verdict, instructions to the jury, and
several aspects of the sentence. For the reasons discussed below, we conclude
that there was insufficient evidence to support the jury verdict on four of the
 five counts of misapplication of bank funds and order an acquittal as to
those counts. Finding no reversible error in the jury instructions, we affirm the
remaining convictions and remand for re-sentencing. 
I. 
From a review of the evidence in this case, the jury could have found
the following. On July 15, 1987, co-defendant Ramiro Coln, president of
Ponce Bank, and his wife purchased a farm from thirteen members of the Usera
family who had inherited the farm from Julio Usera Santiago. The total
purchase price for the farm, known as "La Esmeralda" and located in the
municipality of Salinas, Puerto Rico, was $555,600. Coln paid $83,340 at the
 closing with the remaining balance due nine months later on April 14,
1988. The agreement provided that no interest would be due on the
outstanding balance. As security for the $472,260 balance, Coln granted the
Usera family a mortgage on the property. Following Coln's purchase
of the farm, but prior to the due date of Coln's outstanding $472,260 obligation,
four members of the Usera family approached Coln requesting money.
Monserrate Usera and her sister Ana Usera were the first two, approaching
 Coln in August of 1987 for money to pay off personal debts: Monserrate
needed funds to pay student loans and her daughter's college tuition; Ana Usera
needed funds to make repairs to a building. Although Monserrate Usera
understood that Coln's obligation to the family was not due until the spring of
1988, she went to Coln for an advance. Coln said he would look into
 getting her the funds she needed. Monserrate explained that when Coln
agreed to help her, she understood that she would be taking out a loan from the
bank, the obligation for which was hers alone. Ana Usera also decided to
contact Coln in an effort to obtain money to pay off her current debts since it
was taking such a long time to complete the sale of the farm. Ana explained
that, after Monserrate Usera made the initial contact with Coln, they both
 decided to "make a loan." Although Ana understood that she and her
sister had other options, she thought it best to take out a loan from the bank to
satisfy her outstanding obligations. Subsequent to these
discussions, Coln sent the sisters to see Blasini, then an executive vice
president of Ponce Federal Bank. Coln instructed Blasini to assist each of them
in securing a loan from the bank, which he did. As vice-president of the bank,
 Blasini was authorized to approve unsecured loans up to $50,000 and
 secured loans up to $100,000. When the sisters arrived, he authorized an
$11,000 loan for each, subject to a rate of interest and a due date. Neither
loan application included a financial statement or credit history. Monserrate
Usera and Ana Usera signed the promissory notes and executed partial
assignments of their mortgage interests in the farm as security for the loans.
The partial assignments were signed by both Blasini and Coln but were not
included in the loan file. The stated purpose for the loans was personal; the
means of repayment was the sale of a farm. Because the loans did not exceed
$50,000, their approval did not require collateral. In January of
1988, Carmen Maduro Usera, the mother of Monserrate Usera and Ana Usera,
received a loan from Ponce Federal Bank under similar circumstances.
Although the loan documentation was introduced at trial, Carmen Maduro
died before trial and her testimony was never taken. Ana Usera testified that she
helped her mother make arrangements over the phone to obtain a $15,000 loan
 and then accompanied her mother to the bank. The documents
 themselves indicated that Blasini authorized the loan, that the purpose of
the loan was personal and that it was needed to pay off an outstanding $5,000
loan to the bank. The promissory note set a rate of interest and a due date for
repayment. Although the application did not include a financial statement or
credit history, it noted that Carmen Maduro was well known to the Coln
 family. Carmen Maduro also executed a partial assignment of her
 mortgage interest as security for the loan one day after the loan was
disbursed to her, signed by Blasini and Coln, but it did not appear in the loan
portfolio. In March of 1998, Vincente Usera Tous received a $20,000
 loan from the bank, authorized by Blasini. Vincente Usera also died
prior to trial and never testified about the loan transaction. Although he was a
member of the Usera family, he did not stand to inherit proceeds from the sale
of the farm. Instead, he was due a commission of $23,613 for his assistance in
brokering the sale of the farm. His loan application, admitted in evidence, was
missing a financial statement and a credit history, but the application stated
that he was well known to the bank, in particular to Coln, and that he was a
responsible person. The stated means of repayment was the commission from
the sale of a farm. When Coln's debt to the Usera family came due on
April 14, 1988, he was unable to meet his obligation. On April 19, 1988,
 another member of the Usera family, Consuelo Garcia-Gomez, went to the
bank and demanded payment of her share of the purchase price. Consuelo
Garcia-Gomez was entitled to $200,000, the largest share of the inheritance.
Wendell Coln, Coln's brother, told Consuelo Garcia-Gomez that the money
was not immediately available. She then asked for $100,000. Thereafter,
Blasini brought Consuelo Garcia-Gomez to a loan officer and instructed the
officer to disburse a $100,000 loan to her. The information in her loan
 application was provided to the loan officer by Blasini and the application
stated that collateral for the loan was a partial assignment of Consuelo's
mortgage interest in the farm. The listed purpose of the loan was the purchase
of an apartment. Directly above Blasini's signature, Blasini wrote, "discussed
and agreed to by attorney R.C. Coln." At trial Consuelo Garcia-Gomez
explained that, although she signed loan documents to receive the $100,000,
 she did not go to the bank to obtain a loan and she never read the loan
documents before signing the documents. She maintained that the $100,000
was partial payment of the money owed to her rather than a loan. 
A few weeks later, in May, Coln wrote two sets of checks. The first
set paid off the debts of Monserrate Usera, Ana Usera, Carmen Maduro,
Vincete Usera and Consuelo Garcia-Gomez. He listed the appropriate amount
of their outstanding debts and named both the bank and the borrower as joint
payees. The second set paid each Usera the balance of what he or she was
owed. Each member of the Usera family then signed a cancellation of the
mortgage. On December 19, 1996, a jury convicted Blasini of the
 charges described herein. On February 23, 1998, he was sentenced to
 thirteen months imprisonment to be followed by two years supervised
 release. He was fined $8,000. Blasini now appeals. 
II. A.
Sufficiency of the Evidence When there is a challenge to the
sufficiency of the evidence to support a guilty verdict, "the relevant question is
 whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jacksonv. Virginia, 443 U.S. 307, 319 (1979).
A conviction may rest, in whole or in part, on circumstantial evidence. See
United States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993). It is well
 established that "an appellate court plays a very circumscribed role in
gauging the sufficiency of the evidentiary foundation upon which a criminal
conviction rests." United States v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998).
Nevertheless, we have cautioned that "[d]espite the deference that
characterizes appellate review of jury verdicts, juries do not have carte blanche.
The appellate function . . . requires the reviewing court to take a hard look at
 the record and to reject those evidentiary interpretations and illations that
are unreasonable, insupportable, or overly speculative." Id. (quoting United
States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995)). We noted that "[t]his
function is especially important in criminal cases, given the prosecution's
obligation to prove every element . . . beyond a reasonable doubt." Id. at 56-57
 (quoting Spinney, 65 F.3d at 234). We must reverse a conviction "on the
grounds of evidentiary insufficiency where an equal or nearly equal theory of
guilt[] and a theory of innocence is supported by the evidence viewed in the
light most favorable to the verdict." Id. at 57 (citing United States v. Guerrero,
114 F.3d 332, 344 (1st Cir. 1997))(internal citations omitted). B.
Misapplication Courts have struggled to give precise definition to the
 crime of misapplication, consistently noting that "[t]he problem that has
confronted and perplexed the courts is that there is no statutory definition or
common law heritage that gives content to the phrase 'willfully misapplies.'"
United States v. Wester, 90 F.3d 592, 595 (1st Cir. 1996). These uncertain
origins have posed a challenge to courts attempting to distinguish bad judgment
from bad conduct that is illegal. Nevertheless, in Wester, we recently
 discussed the two notions that underlie the crime of misapplication: one
relating to conduct, i.e., wrongful use of bank funds, the other focusing on an
intent to injure or defraud a bank. The government cannot prove its claim of
misapplication without establishing both elements. See id. The interrelationship
 between these elements is subtle, given that "the same facts can easily be
the basis for deeming the conduct to be wrongful and the intent fraudulent." Id.
 Counts Two through Five
 In this case, the government's theory was that Blasini was
attempting to deceive the bank as to the true purposes of the loans: namely, that
the disbursements to the Usera family were partial payments of Coln's debt.
However, Coln's obligation to the Usera family did not come due until April
14, 1988. Blasini approved loans to Monserrate Usera and Ana Usera in August
of 1987; to Carmen Maduro in January of 1988; and to Vincete Usera Tous in
 March of 1988. Because Coln had no current obligation to the Useras at
the time these four loans were extended, the loans cannot be characterized as
partial payments of a debt. Both Ana Usera and Monserrate Usera testified
that they needed money and, since the balance on the farm would not come due
for many months, they went to Coln to seek an advance of funds. Although
the jury could have concluded from this testimony that they were initially
requesting an advance of the money Coln owed them, both sisters testified
 that they understood they were executing and signing loan documents.
Ana Usera testified that, following her discussions with her sister and Coln, she
decided to take out a loan from the bank. Monserrate Usera explained that
she understood her obligation to the bank and she noted that, even if Coln had
not paid the balance of his debt, she would have paid the balance of the loan.
Although we have no direct testimony concerning Carmen Usera's loan, her
 daughter Ana testified that her mother was also interested in obtaining a
loan to satisfy some of her debts. The government's theory that Blasini was
executing "sham" loans and intending to defraud the bank as to their true
purpose is simply not supported by the evidence. With regard
to Vincente Usera, the government's theory of misapplication is even weaker.
Coln had no outstanding obligation to Vincente Usera, who was simply
owed a commission following the sale of the property. He was not entitled to a
share of the profits. There was no debt that Coln had to pay at any time. 
Nor are there "other circumstances" sufficient to convert these loans
into misapplication of bank funds. See United States v. Gens, 493 F.2d 216,
222 (1st Cir. 1974)(holding that "where the named debtor is both financially
capable and fully understands that it is his responsibility to repay, a loan to him
cannot absent other circumstances properly be characterized as a
sham or dummy"). The loan applications lacked financial statements and
 credit histories yet they comported with minimal requirements for
 legitimate loans. The former Ponce Bank commercial credit officer
 testified that she could not think of any bank policy which would forbid
the bank to disburse a loan without any financial statement. Similarly, she
testified that the lack of a credit history did not mean that a loan could not be
authorized. The stated purpose on the loans was accurate and Blasini was
well within his authority to approve the loans. The four members of the
Usera family signed promissory notes and partial assignments for the loans.
Although the partial assignments of Coln's obligations to the Useras were
 not included in all of the loan applications, collateral was not required for
these loans and thus the partial assignments were not prerequisites to their
authorization. At trial the government suggested that the failure to include the
partial assignments in the files was an attempt to withhold the fact that Coln's
future obligation was the means of intended repayment for the parties.
 This omission, without more, is not enough to transform the transactions
into willful misapplication of bank funds. We do not mean to suggest
that Coln and Blasini were not playing it close to the line. Blasini may have
been helping Coln to curry favor with the Usera family so that they would be
lenient with Coln in the event that Coln had trouble satisfying his
 obligations. This possibility, however, given the totality of the
 circumstances, does not rise to the level of willful misapplication. 
Count Six 
The loan to Consuelo Garcia-Gomez stands in stark contrast to the
other four loans. Coln's debt to the Usera family had matured and he was late
with payment. Consuelo Garcia-Gomez went to the bank and demanded
payment. She did not request a loan. At the bank she initially met with Coln's
brother who informed her that the money was not available. She demanded that
he pay her something and she suggested $100,000. Thereafter, Blasini took
 Consuelo Garcia-Gomez to meet with the loan officer and instructed the
officer on the details of the loan application. On the actual application,
Blasini included the notation, "discussed and agreed to by attorney R.C. Coln."
Although there is some uncertainty in the evidence as to how Consuelo GarciaGomez was brought to Blasini's attention, the jury could have reasonably
concluded, given Blasini's notation on the application, that Coln himself
 contacted Blasini and requested that Blasini facilitate a $100,000 loan from
the bank to Consuelo Garcia-Gomez. In cross-examination of
Consuelo Garcia-Gomez, Blasini attempted to show that she knew she was
taking out a loan from the bank. Consuelo Garcia-Gomez denied this
knowledge, maintaining that she did not pay any attention to what she was
signing, even though she signed and notarized all the pertinent documentation
for a $100,000 loan. She was simply happy that she was getting at least
 half of what was owed to her. Morever, there was evidence, discussed
infra, from which the jury could conclude that Blasini misrepresented the
purpose of the loan in the application (stating that the loan was for the purchase
of an apartment). As a result of this deceptive conduct, Blasini caused the bank
to part with its monies through a sham loan to pay a portion of Coln's
delinquent debt. This wrongful use of bank money, carried out with an intent
 to deceive the bank about the true nature of the transaction, involved all of
the essential elements of the crime of misapplication. C. Bank Fraud
 The Government charged Blasini with one count of bank
 fraud, the elements of which are well established: 1) the defendant must
engage in a scheme or artifice to defraud, or must make false statements or
misrepresentations to obtain money from 2) a financial institution and 3) must
do so knowingly. See United States v. Brandon, 17 F.3d 409, 424 (1st Cir.
1994). A scheme or artifice is defined to include "any plan, pattern or course
of action, including false and fraudulent pretenses and misrepresentations
intended to deceive others in order to obtain something of value." Id.
(emphasis added)(quoting United States v. Goldblatt, 813 F.2d 619, 624 (3d
Cir. 1987)). The statute provides that each execution of a scheme to defraud
will constitute a separate indictable offense. See 18 U.S.C. 1344; see
alsoBrandon, 17 F.3d at 422. We have explained that "each time an
 identifiable sum of money is obtained by a specific fraudulent transfer,
there is likely to be a separate execution of a scheme to defraud." Id. The
government need not prove actual loss as a result of the scheme, however. See
United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir. 1987)("The Government
was not required to show that [the bank] incurred a loss in order to prove a
scheme to defraud . . . ."); see also Brandon, 17 F.3d at 427. Nor must the
 government show that the defendant personally benefitted from the
 alleged scheme. See Goldblatt, 813 F.2d at 624. In the
indictment, the government charged Blasini with one count of bank fraud based
on five separate loan transactions, each of which could have served as the basis
for the fraud allegation. See Brandon, 17 F.3d at 422. Thus, the bank fraud
 conviction is unaffected by our finding that four of the loans were
 legitimate. With respect to the fifth transaction, the evidence was
sufficient for the jury to conclude that Blasini's conduct satisfied the elements
of bank fraud because he knowingly engaged in a scheme to obtain bank funds,
deceitfully characterized as a loan, to satisfy $100,000 of Coln's outstanding
obligation to Consuelo Garcia-Gomez. Proof of Blasini's intent to deceive, a
 necessary element of the misapplication charge, was also proof of his
scheme to obtain money from the bank by false representation, a necessary
element of the charge of bank fraud. Accordingly, the evidence establishing
misapplication of bank funds on the fifth loan also supports a conviction on the
charge of bank fraud. D. False Entry We have not had an
occasion to construe 1006. Read literally, 1006 provides that any
employee of an insured bank who makes a false entry in any statement to such
institution with the intent to defraud such institution is subject to federal
penalty. See 18 U.S.C. 1006. In interpreting this section, however, the
 Fifth Circuit has read a "materiality" requirement into the provision: that
is, the government must show that the defendant knowingly and willfully made
or caused to be made a false entry concerning a material fact in any statement to
the institution. See United States v. Parks, 68 F.3d 860, 865 (5th Cir. 1995).
ButCf. United States v. Harvard, 103 F.3d 412, 417-20 (5th Cir. 1997)(finding
that materiality is not an element of 18 U.S.C. 1005, a nearly identical
statute). In his argument, Blasini adopts the Fifth Circuit's approach and
contends that materiality is an element of the crime. The government also reads
1006 to include materiality as an element of the crime. 
Despite the shared views of the parties that materiality is an element
of the statute, we can find no other circuit court which has directly addressed
this question. Recently, in United States v. Wells, 519 U.S. 482, 117 S. Ct. 921
(1997), the Supreme Court indicated its intent to construe similar statutory
 definitions narrowly. There the Court concluded that materiality of the
falsehood was not an element of knowingly making a false statement to a
federally insured bank under 18 U.S.C. 1014: "Nowhere does it further say
that a material fact must be the subject of the false statement or so much as
mention materiality. . . . Thus, under the first criterion in the interpretive
 hierarchy, a natural reading of the full text, materiality would not be an
element of 1014." Wells, 117 S. Ct. at 927(internal citations omitted). The
Court went on to conclude that the common law would not import a materiality
requirement into the term "false statement" and that ultimately the "statutory
history confirm[ed] the natural reading." Id. at 928. In light of
this recent pronouncement of the Supreme Court about a comparable statutory
provision, the absence of advocacy in this case on the inclusion of a materiality
element in 1006, and our own conclusion that the evidence was sufficient to
 allow the jury to conclude 1) that the entry in question was false and 2)
that it was material, we assume without deciding that materiality is an element
of the crime of false entry for the purposes of this appeal. 
Marisel Marrero, an assistant manager of the bank at the time in
question, testified that Blasini instructed her to prepare documentation for a

loan to Consuelo Garcia-Gomez. She testified that Blasini provided her with the
basic information for the application and instructed her that the purpose of
Consuelo Garcia- Gomez's loan was the purchase of an apartment. Given
Consuelo Garcia-Gomez's testimony that she did not believe she was taking
 out a loan, and given her brother's testimony that she was not intending to
purchase an apartment, it was reasonable for the jury to conclude that the
statement on the loan application about the purchase of an apartment was false
and that Blasini knew it to be so. Materiality requires proof that
the entry would have the capability or tendency to influence the bank in its
decision-making process, or impair or pervert the functioning of the
government institution. See United States v. Parks, 68 F.3d 860, 865 (5th Cir.
 1995); see also United States v. Corsino, 812 F.2d 26, 30 (1st Cir. 1987)
(discussing the materiality requirement in 18 U.S.C. 1001). "[T]he standard
is not whether there was actual influence, but whether it would have a tendency
to influence." United States v. Edgar, 82 F.3d 499, 510 (1st Cir. 1996). Thus,
the government is required to demonstrate the false entry's potential effect on
the governmental agency, even if the false entry did not actually affect the
government function. See United States v. Swaim, 757 F.2d 1530, 1534 (5th
Cir. 1985)( the government need not show actual reliance on the false
statement, only that the statement itself would have impacted the bank). 
Ironically, it was Blasini's own expert witness who offered the
testimony from which the jury could reasonably have concluded that the false
entry as to the purpose of the loan would have the tendency to influence the
bank's decision or, alternatively, would affect a bank examiner's later review of
the propriety of the loan. Michael Cinkala, a bank examiner with over
 twenty years experience, testified that "the information you would be
looking for in a loan file would be, for instance, the financial statement of an
individual or corporation, the collateral, the any comments written as to
the character of the individual, the purpose of the loan, [and] some ability to
repay the loan." From this testimony, the jury could conclude that the stated
purpose on the loan application would be the type of information relied upon
 by bank examiners in reviewing loans to determine whether the bank is
adhering to proper procedures. Accordingly, we find that the jury was
presented with sufficient evidence from which it could conclude that the entry
on the loan application was false and material in violation of 1006. 
Blasini further contends that the court's failure to define "materiality"
in its instructions to the jury was reversible error. Blasini did not raise this
objection to the instruction at trial and our review is for plain error. See United
States v. Santana-Rosa, 132 F.3d 860, 863 (1st Cir. 1998). "[E]rror rises to
 this level only when it is so 'shocking that [it] seriously affect[ed] the
fundamental fairness and basic integrity of the proceedings conducted below.'"
United States v. Ortiz, 23 F.3d 21, 25 (1st Cir. 1994)(citation omitted). We
"review the context of the charge as a whole to determine if it contains an error

that threatens to undermine the fundamental fairness of the trial." SantanaRosa, 132 F.3d at 863 (internal quotation marks omitted). Again,
assuming that materiality is an element of the crime, the court's failure to define
"materiality" in its instructions to the jury on the charge of false entry does not
 constitute plain error. The issue of materiality was submitted to the jury,
with instructions that the false entry must be material and that materiality was
an essential element of the crime. Blasini did not offer an objection to the
instruction at trial and makes no developed argument on appeal why failure to
define material would constitute plain error. We conclude that
 "materiality" is not such a technical concept outside of the jurors'
experience that failure to define it rises to the level of plain error. Cf. United
States v. Fulmer, 108 F.3d 1486, 1495 (1st Cir. 1997)(meaning of the word
"intimidate" not outside a juror's understanding such that failure to define the
word would be an error that threatened to undermine the fundamental fairness
of the trial). E. Conspiracy To convict Blasini on a
charge of conspiracy, the government was required to establish that: a
conspiracy existed; Blasini knew of and voluntarily participated in the
conspiracy; and an overt act took place in furtherance of the conspiracy.
SeeUnited States v. Woodward, 149 F.3d 46, 67 (1st Cir. 1998). The
 agreement can be tacit rather than express. See id. Neither the agreement
nor Blasini's participation in furtherance of the agreement need be proved by
direct evidence. See id. at 68. We reject Blasini's contention that there
was insufficient evidence to support the conspiracy conviction. As
 discussed above, there was sufficient evidence from which the jury could
conclude that Blasini engaged in misapplication of bank funds, bank fraud and
making a false entry on a loan application -- the three substantive counts
underlying the conspiracy count. There was direct evidence of Blasini's
conspiracy with Coln to use bank funds to satisfy Coln's outstanding debt:
Consuelo Garcia-Gomez's application includes a handwritten notation by
Blasini stating that the loan was "discussed and agreed to by attorney R.C.
Colon." Moreover, there was circumstantial evidence from which the jury
 could infer that Blasini agreed to assist Coln in satisfying his debt to
Consuelo Garcia-Gomez with bank funds, and that he knowingly participated in
the execution of the plan to use bank funds for this purpose. 
Finally, Blasini contends that the use of a general verdict form
invalidates his conviction on the conspiracy count because the jury acquitted
him on Count Nine, one of the overt acts charged in furtherance of the
conspiracy. He claims that "the use of a general verdict form does not reveal
which objects or overt acts the jury relied on to find Appellant guilty of
conspiracy." This argument is against the force of the law and was rejected
in Griffin v. United States, 502 U.S. 46, (1991), where the Supreme Court
stated: "When a jury returns a verdict on an indictment charging several acts in
the conjunctive . . . the verdict stands if the evidence is sufficient with respect
to any one of the acts charged." Id. at 55-56 (quoting Turner v. United States,
396 U.S. 398, 420 (1970)); see also United States v. Mitchell, 85 F.3d 800,
 810-811 (1st Cir. 1996)(discussing application of Griffin). The use of a
general verdict form does not invalidate the verdict on Count One. See United
States v. Fisher, 22 F.3d 574, 576 (5th Cir. 1994)(holding that in light of
Griffin, there is no error in the use of a general verdict form for a conspiracy
count). III. Sentencing In light of the convictions that must
be vacated, we must also vacate the sentence. We do so without analyzing
the alleged errors in sentencing. On remand, the sentencing court will have the
 full opportunity to re-evaluate and recalculate Blasini's sentence in light of
our rulings. See United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.
1989)("When the conviction on one or more of the component counts is
vacated, common sense dictates that the judge should be free to review the
efficacy of what remains in light of the original plan, and to reconstruct the
sentencing architecture upon remand, within applicable constitutional and
 statutory limits if that appears necessary in order to ensure that the
punishment still fits both crime and criminal."). The judgment is
VACATED on Counts Two through Five, AFFIRMED on Counts One, Six,
Seven and Eight, and REMANDED for re- sentencing. Upon remand, the
district court shall enter a judgment of acquittal on Counts Two through Five.
</pre>
</body>
</html>

United States v. Blasini-Lluberas, 1st Cir. (1998)

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Blasini-Lluberas, 1st Cir. (1998)

Uploaded by

Copyright:

Available Formats

<head>

question, testified that Blasini instructed her to prepare <br>documentation for a

"review the context of the <br>charge as a whole to determine if it contains an error

You might also like